Com. v. Drescher, J. ( 2017 )


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  • J-S62004-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
    OF PENNSYLVANIA
    Appellee
    v.
    JOHN THOMAS DRESCHER
    Appellant                   No. 1948 MDA 2016
    Appeal from the Judgment of Sentence Entered October 18, 2016
    In the Court of Common Pleas of Cumberland County
    Criminal Division at No: CP-21-CR-0002676-2015
    BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
    MEMORANDUM BY STABILE, J.:                          FILED DECEMBER 21, 2017
    Appellant John Thomas Drescher appeals from the October 18, 2016,
    judgment of sentence entered in the Court of Common Pleas of Cumberland
    County (“trial court”), following his jury convictions for riding his bicycle under
    the influence of alcohol (“DUI”) in violation of Section 3802(a)(1) of the
    Vehicle Code, 75 Pa.C.S.A. § 3802(a)(1). Upon review, we vacate and remand
    for resentencing.
    The facts and procedural history underlying this case are undisputed.
    As recounted by the trial court:
    Late at night on June 2, 2015, Officer Jory C. Harlan initiated
    a traffic stop after witnessing [Appellant], on a bicycle without
    visible reflectors or red lights, ride past the officer’s parked
    vehicle.    Immediately upon approaching [Appellant], Officer
    Harlan detected the strong odor of alcohol and noted that
    [Appellant] appeared visibly intoxicated and had both slurred
    speech and difficulty standing. During the course of the stop,
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-S62004-17
    [Appellant] admitted to having consumed multiple alcoholic
    beverages. [Appellant] failed the field sobriety tests administered
    by Officer Harlan, and was arrested for DUI. Upon being brought
    to the police station and being read the refusal warnings contained
    within Pennsylvania’s DL-26 form, [Appellant] refused to provide
    a sample of his blood. [Appellant] was charged with both DUI-
    General Impairment (3rd or subsequent) and DUI-General
    Impairment with Refusal (3rd or subsequent).
    Following a jury trial on March 22, 2016, [Appellant] was
    found guilty on both counts and was ordered to appear for
    sentencing on May 24, 2016. [Appellant] failed to appear for
    sentencing on May 24, 2016, and a bench warrant was issued.
    [Appellant] was subsequently arrested on the bench warrant[.]
    Trial Court Opinion, 1/6/17, 1-2. On July 29, 2016, Appellant filed a “post-
    trial motion,” arguing that it would be illegal under Birchfield v. North
    Dakota, 
    136 S. Ct. 2160
     (2016), which was issued on June 23, 2016, for the
    trial court to impose upon him enhanced penalties for his refusal to submit to
    a blood draw. On October 18, 2016, the trial court sentenced Appellant to,
    inter alia, one to five years’ imprisonment for DUI-general impairment (with
    refusal).   On the same day, the trial court denied Appellant’s “post-trial
    motion,” which the trial court treated as a post-sentence motion. Appellant
    timely appealed. Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement
    of errors complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a)
    opinion.
    On appeal,1 Appellant argues only, and the Commonwealth agrees, that
    the trial court erred as a matter of law under Birchfield in imposing upon him
    enhanced penalties for his refusal to provide a blood sample.
    ____________________________________________
    1 Because Appellant’s claim implicates the legality of his sentence, our
    standard of review is de novo and our scope of review is plenary.
    Commonwealth v. Wolfe, 
    106 A.3d 800
    , 802 (Pa. 2014).
    -2-
    J-S62004-17
    In Birchfield, the United States Supreme Court held that criminalization
    of a suspect’s refusal to consent to a warrantless blood test violates the Fourth
    Amendment to the United States Constitution. Birchfield, 136 S. Ct. at 2186.
    Recently, we concluded that the imposition of enhanced criminal penalties for
    refusing to provide a blood sample is constitutionally invalid.             See
    Commonwealth v. Giron, 
    155 A.3d 635
    , 639-40 (Pa. Super. 2017) (vacating
    a sentence that included increased criminal penalties based on a defendant’s
    refusal to consent to a blood test).
    Instantly, as noted above, it is undisputed that Appellant was subjected
    to enhanced penalties for his refusal to provide a blood sample. Appellant was
    sentenced to one to five years’ imprisonment for DUI-general impairment
    (with refusal). Thus, consistent with Birchfield and Giron, we agree with
    Appellant and the Commonwealth that Appellant’s sentence here is illegal.
    Accordingly, we vacate Appellant’s judgment of sentence and remand this
    matter to the trial court for resentencing.
    Judgment of sentence vacated.           Case remanded.         Jurisdiction
    relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/21/2017
    -3-
    

Document Info

Docket Number: 1948 MDA 2016

Filed Date: 12/21/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024